STATE OF NEW JERSEY v. NORMAN R. MYERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2523-04T52523-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORMAN R. MYERS,

Defendant-Appellant.

_____________________________________________________________

 

Submitted December 21, 2005 - Decided June 7, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Municipal Appeal No.

54-04.

Robert F. Rupinski, attorney for appellant.

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Louis F. D'Onofrio,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On April 27, 2003, Frank Robert Perri, the Construction and Zoning Official for Tabernacle Township, contacted Howard Roun, Jr., an Environmental Health Specialist with the County of Burlington, regarding rubbish located on property owned by defendant, Norman Myers. At Perri's request, Roun inspected defendant's property and, as a result of his inspection, Roun issued a violation notice to defendant dated May 16, 2003.

The violation notice advised defendant that his property had been inspected on April 30, 2003, and it stated:

The following unsatisfactory conditions, noted, are considered to be in violation of applicable [s]tate and [l]ocal laws:

[N.J.S.A.] 13:1E-9.3 a and b Collection, disposal at or transportation of solid waste to authorized disposal site

Public Health Nuisance Code (1953) Section II 2.1 a,b

Solid Waste [N.J.A.C.] 7:26-2.8(e)

1. At the time of this investigation the following solid waste was detected on the residential property known as 1540 [Route] 206.

2. Misc. construction material, trash, and scrap steel.

3. The wastes are to be properly removed and disposed of at a certified recycling facility.

4. Copies of waste disposal receipts for the above referenced waste are to be supplie[d] to this office.

The violation notice was sent to defendant by certified mail, and he received it on May 30, 2003. Although defendant attempted to clean up his property, and made some progress in doing so, municipal court charges were initially filed against him on August 27, 2003. We have not been provided with copies of these original charges, but during municipal court proceedings on March 2, 2004, involving subsequent but related charges, Roun testified as follows:

Q. Now on the 27th of August, [2003] you filed charges for what things, sir?

A. It was . . . a charge filing under [N.J.S.A.] 13:1E-9.3b for solid waste transportation, and then another one under [N.J.S.A.] 13:1E-[9.3a] for storage, and then another one under [N.J.A.C.] 7:26-2.8e for solid waste.

Q. These are all solid waste charges, sir?

A. Yes.

Q. And, sir, . . . did you participate in court proceedings with those charges?

A. Yes, we did.

Q. And what happened with those?

A. The final outcome . . . Mr. Myers was fined . . . . And Your Honor requested him to come into compliance in 45 days or else Mr. Myers would be back in front of this [c]ourt again. Mr. Myers did not comply.

As a result of defendant's apparent failure to clean up his property after entering a guilty plea to one of the original charges filed on August 27, 2003, five new charges were filed. The five new charges, alleging offenses on April 30, 2003, were scheduled to be heard in municipal court on December 2, 2003, at 3:30 p.m. Sometime after 3:30 p.m., the municipal court judge issued a warrant for defendant's arrest:

THE COURT: . . . [L]et me set the table here. First of all, there was a situation where Mr. Myers['s] [previous] cases were disposed of, and I suspended a portion of a fine of $250, and then it was brought to my attention last time, although I don't have those cases in front of me now, I do recall specifically that it was brought to my attention that there was a non-compliance situation; and, thus, I reimposed the $250. That had been suspended . . . .

. . . .

What I'm going to do, he's failed to . . . pay the $250 and he has failed to appear in this case. This appears to be a flagrant and a chronic situation. Ordinarily for these types of violations, health code violations, I would not issue a warrant. I'm going to do that in this case because I don't think there's any other way to get this gentleman's attention. I'm going to issue a warrant for his arrest. I'm going to set bail in the amount of $500 because I find this to be an aggravating situation.

I'm going to note that Mr. Roun is here, and he'll be apprehended, and hopefully we'll get his attention.

Thank you, sir. I'm sorry for your inconvenience. He just doesn't want to cooperate. He's digging in.

After defendant arrived and apologized for being late, the municipal court judge vacated the arrest warrant. But he had this to say:

THE COURT: And I issued a warrant. Now I'm going to vacate the warrant because you bothered to show up. If you're ever late again, and you stroll in here late, and if I've already issued a warrant, you'll be taken into custody. Do you understand that?

THE DEFENDANT: Yes, I do, so Your Honor.

THE COURT: You think you're running this show. I know by the attitude that you've displayed throughout, but you're not going to play games . . . with this [c]ourt's schedule. Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You've got a lot of nerve, in view of your non-compliance in this case, with showing up when you want to.

Now I'll take the new matters first. You [were] charged on April 30th of 2003 with a violation of the Public Health Code under 7:26-2.8. You're also charged with collection of solid waste under 702.6-2.8, public nuisance under Local Ordinance 2003-6, collection and the disposal of solid waste [in] violation [of N.J.S.A.] 13:1E-9.3, and transportation of solid waste under [N.J.S.A.] 13:1E-9.3(b).

If you plead guilty or you are found guilty, substantial fines will [be] imposed upon you and I want you to know that in view of what I consider to be, and I'm not prejudging your matter, but what I consider to be a . . . less than responsible attitude on your . . . part in terms of correcting what appear to be significant deficiencies, that if you plead guilty, [or] you are found guilty these fines could run into the thousands and thousands of dollars. Do you understand that?

THE DEFENDANT: Yes, I do, Your Honor.

THE COURT: Are you going to hire a lawyer or represent yourself?

THE DEFENDANT: Yes, I am.

The judge also addressed the initial charges filed on August 27, 2003:

October 7th of '03, I imposed a [$500] fine and $30 in court costs with respect to the solid waste violation and I suspended $250 of the fine on condition that there be full compliance within 45 days. I scheduled the matter for November the 18th to review whether or not you had complied with the directives.

. . . [W]e appeared here on November the 18th. You weren't here. And . . . I was about to issue a warrant for you that day, but I did not. I . . . felt it would be more appropriate to do what the Prosecutor requested to do, which was I was informed at that time through the Prosecutor, by Mr. Roun, that there was no compliance and as a result, I reassessed the $250 that I had suspended.

. . . .

Now do you have the $250?

THE DEFENDANT: Yes, I do.

THE COURT: Okay. That will be paid today.

The five new charges were tried on March 2, 16, and April 20, 2004. As part of his closing argument, defendant's attorney reminded the judge that prior to his representation of defendant, Myers had "already pled guilty to some violation and has paid some fines already toward this problem which he has now for the most part corrected." The State agreed that defendant had "made some efforts and has achieved some degree of success," but the municipal prosecutor argued that defendant had "not achieved the compliance that I think you're being asked to consider."

While defendant's attorney seems to have suggested to the municipal court judge that it would be unfair to punish defendant more than once for the condition of his property on April 30, 2003, we are uncertain whether the initial charges and the subsequent charges all relate to the same offense date, and we have not been asked to address this issue. We gather from the State's brief that "[o]n October 7, 2003, defendant was fined $500 for a solid waste violation, but [the municipal judge] suspended $250 of that fine on the condition that defendant comply within 45 days." And, as previously noted, on November 18, 2003, the municipal court judge concluded, apparently without a hearing, that "there was no compliance" and defendant was required to pay the suspended portion of his fine in the amount of $250. In any event, as a result of defendant's guilty plea in connection with one of the initial charges, it is clear that he was subject to additional penalties in the event of a second offense. N.J.S.A. 13:1E-9.4(b) ("Any person convicted of [violating N.J.S.A. 13:1E-9.3(a) or (b)] is subject to a fine of . . . not more than $5,000 for a second offense . . . .").

With respect to the five new charges, the municipal court judge dismissed complaint number SC-001647, charging a municipal ordinance violation, because the ordinance was not in effect on April 30, 2003, which was the date of the alleged violation. The municipal court judge found defendant guilty of violating the Solid Waste Management Act by collecting and disposing of solid waste, N.J.S.A. 13:1E-9.3(a) (2003), (complaint number SC-001643), and the judge imposed a $25,000 fine plus court costs, but suspended $20,000 of the fine on condition that defendant bring his property into compliance by June 30, 2004. In addition, defendant was found guilty on three other charges: (1) transporting solid waste in violation of N.J.S.A. 13:1E-9.3(b) (complaint number SC-001644), (2) violating the public health code of 1953, section 2.1(a) and (b) (complaint number SC-001645), and (3) collecting solid waste in violation of N.J.A.C. 7:26-2.8(e) (complaint number SC-001646). For these three offenses, the court imposed an aggregate fine of $300 plus court costs.

In response to defendant's request to stay the fines pending appeal to the Law Division, the municipal court judge ruled as follows:

I will stay the fine for 20 days. And if a notice . . . of appeal is filed, I will then stay the fine pending the appeal. I have no intention, and I want the record to be clear, . . . of suspending the compliance portion of this sentence. He shall comply and I am going to retain jurisdiction and I believe the law is irrespective if you file an appeal, the law allows me to enforce this order. Jurisdiction in my opinion, unless you make the application up there and a Superior Court [j]udge determination, and that determination, of course, will bind me, that a Superior Court [j]udge determines that he or she shall assume the enforcement aspect. If that's the case so be it; but if not, I will enforce this order, and we'll be back here appeal or no appeal, for me to go forward with the compliance review.

Defendant's appeal to the Law Division was heard on December 10, 2004. The transcript of that proceeding confirms that the Law Division was unable to address enforcement proceedings that took place in municipal court after defendant was sentenced on April 20, 2004:

[Assistant Prosecutor]: But there is another issue regarding the compliance hearing. . . . As I said, we don't have a transcript for that, but that was part of Judge Sweeney's stay order. So something needs to be addressed with that also. I don't know --

THE COURT: Mr. Rupinski?

MR. RUPINSKI: Yes, Your Honor. That was a good point.

Mr. Myers was found in contempt because he had not cleaned it up to the satisfaction of the Township officials.

. . . .

Your Honor, I happened to be at that hearing. And there was a 30 day jail term imposed and [the municipal court judge] was gonna permit Mr. Myers to serve it on weekends.

The Law Division was unable to determine whether defendant's custodial sentence was appropriate, however, because it did not have the transcript of the municipal court enforcement proceedings.

Now, the [c]ourt agrees with [the Assistant Prosecutor] that it's difficult for this [c]ourt to impose a custodial sentence based upon a proceeding that the [c]ourt does not have any record of. The [c]ourt has the [m]unicipal [c]ourt records, but does not have the records concerning the compliance.

But let me say this. It's this [c]ourt's feeling that Mr. Myers has to be made to bring his property into compliance. That's number one.

If he can't do that, or he's not willing -- if he can't do that, that's one thing. If he's not willing to do that, that's another thing. And if he's not willing to do that, then, of course, the jail sentence is proper.

But . . . you also have to take a look at the ability to bring the property into compliance. And he's gotta have the wherewithal to do that. And that I can't judge . . . . And I'm not gonna sustain sending this man to jail for 30 days unless I can make that finding, that he doesn't [sic] have the wherewithal to do that.

So the only thing that I could do, at this point, I guess is to remand that portion of it back to the [m]unicipal [c]ourt for the [c]ourt's determination as to whether, in fact, the 30 day sentence is necessary at this point. But . . . I really can't make that call.

The Law Division found that the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -48, "is applicable to Mr. Myers," but it did not make any specific findings regarding any of the four complaints. Even though the Law Division judge was unable to determine the final sentence imposed by the municipal court judge, the Law Division judge imposed a $5,000 fine plus court costs of $30 and remanded defendant's jail sentence to the Tabernacle Township Municipal Court for reconsideration. The Law Division judge, however, failed to provide a statement of reasons as to why the fine was imposed, see R. 3:21-4(g), and he also failed to make a finding as to whether defendant had the ability to bring his property into compliance.

On January 25, 2005, defendant filed his appeal from the Law Division judgment dated December 10, 2004, and on February 15, 2005, the Law Division judge signed a consent order, which provides, in pertinent part, as follows:

1. A trial was held in Tabernacle Township Municipal Court on April 20, 2004, and the defendant was found guilty of violating (1) N.J.S.A. 13:1E-9.3(a) - collection and disposal of solid waste; (2) Public Health Code 1953-II - storage of solid waste; and (3) N.J.A.C. 7:26-2.8(e) - collection of solid waste.

2. The defendant was fined the sum of $25,000 and ordered to remove certain items from his property.

3. A compliance hearing was held on September 7, 2004 and the Court found that the defendant failed to remove all items from his property and was found in contempt of [c]ourt and sentenced to 30 days in the Burlington County Jail.

4. The defendant appealed his conviction to the Superior Court Law Division.

5. A trial de novo was held on December 10, 2004 [in the Law Division].

6. At the trial de novo, the defendant was fined $5,000 plus $30 court costs.

7. [The Law Division] remanded the matter to the Tabernacle Township Municipal Court for reconsideration of the 30-day jail term.

8. On February 1, 2005, the defendant appeared before the . . . judge of the Tabernacle Township Municipal Court, who imposed a 30-day jail term.

9. On January 25, 2005, a [n]otice of [a]ppeal was filed with the Superior Court of New Jersey, Appellate Division.

10. The defendant's appeal of his conviction in the Law Division is now pending.

An appeal may be taken to the Appellate Division as of right "from final judgments of the Superior Court trial divisions . . . ." R. 2:2-3(a)(1). To be eligible for appeal as of right under R. 2:2-3(a)(1), a judgment must be final as to all issues and all parties. See, e.g., Caggiano v. Fontoura, 354 N.J. Super. 111, 123 (App. Div. 2002); CPC Int'l, Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999); Frantzen v. Howard, 132 N.J. Super. 226, 227 (App. Div. 1975); see also Pressler, Current N.J. Court Rules, comment 2.2.2 on R. 2:2-3 (2006). The rule reflects the well-established principle that interlocutory appeals are "wasteful of judicial resources." Frantzen v. Howard, supra, 132 N.J. Super. at 228; accord CPC Int'l, Inc. v. Hartford Accident & Indem. Co., supra, 316 N.J. Super. at 365. Furthermore, "[p]iecemeal reviews, ordinarily, are anathema to our practice, as expressed in the rules which require the final disposition of all issues at . . . the trial level followed by orderly appellate review." Frantzen v. Howard, supra, 132 N.J. Super. at 227-28; see also State v. Reldan, 100 N.J. 187, 205 (1985) ("Interlocutory appellate review runs counter to a judicial policy that favors an uninterrupted proceeding at the trial level with a single and complete review." (internal quotation marks omitted)).

When a party appeals an interlocutory order without being granted leave to appeal, a respondent has a duty to file a timely motion to dismiss the appeal. Shimm v. Toys From the Attic, Inc., 375 N.J. Super. 300, 303-04 (App. Div. 2005); Gloucester City Bd. of Educ. v. Am. Arbitration Ass'n, 333 N.J. Super. 511, 519-20 (App. Div. 2000); see also Hudson v. Hudson, 36 N.J. 549, 553 (1962) (noting the "[c]onsent of counsel cannot supply a basis for violation of the [all-issue finality] rule."). If, however, the respondent fails to move for dismissal of an interlocutory appeal, the appellate court may dismiss the appeal on its own motion. Shimm v. Toys From the Attic, Inc., supra, 375 N.J. Super. at 302 n.1; R. 2:8-2.

In the present case, defendant's notice of appeal to this court was filed on January 25, 2005, but as of that date the municipal court had not yet reconsidered the thirty-day jail sentence. We conclude, therefore, that the appeal is interlocutory because the Law Division has never reviewed the "30-day jail term" which, according to the consent order dated February 15, 2005, was imposed on February 1, 2005. R. 2:2-3(a)(1). We also note that defendant did not move for leave to appeal from the interlocutory order of the Law Division pursuant to R. 2:2-4.

The February 15, 2005 consent order signed by the Law Division judge did not transform an interlocutory order into a final judgment for the purpose of affording defendant an opportunity to appeal as of right. See CPC Int'l, Inc. v. Hartford Accident & Indem. Co., supra, 316 N.J. Super. at 366. And as we previously noted, the Law Division should refrain from attempting to "foist jurisdiction upon this court." Ibid.

Finally, even if we chose to adjudicate this appeal on the merits, we could not because we have not been furnished with a transcript of the municipal court enforcement proceeding where the court imposed the thirty-day jail term. Cf. State v. Nikola, 359 N.J. Super. 573, 579-80 (App. Div.) (declining to remand to the Law Division and deciding an appeal taken directly from the municipal court because "a complete record concerning the circumstances of defendant's arrest was developed in the . . . municipal court and that court made the factual findings essential to a determination of the legal issues . . . ."), certif. denied, 178 N.J. 30 (2003).

Accordingly, we grant leave to appeal, nunc pro tunc, for the limited purpose of vacating the fine imposed by the Law Division, without prejudice to its determination on continuation of defendant's appeal pursuant to Rule 3:23, after the remand to the municipal court has been completed. We remand this matter to the Law Division for such further proceedings as may be appropriate. We do not retain jurisdiction.

 

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A-2523-04T5

June 7, 2006